New York Labor and Employment Law Report

Administrators of qualified retirement plans have always had to deal with the problem of “missing participants” – that is, terminated vested participants for whom the administrator does not have a current mailing address or other contact information, and participants who refuse to respond to communications from the administrator.  This problem frequently comes to light when a terminated participant nears retirement age or otherwise becomes entitled to receive a plan distribution, because at that time the administrator must contact the participant about distribution options, beneficiary designations, and other matters.  And when a terminated participant approaches age 70½, the necessity of locating him or her becomes more urgent, because plan distributions generally must begin shortly after that age is reached.

Besides being an administrative problem, the inability to locate terminated participants can represent legal risks.  The U.S. Department of Labor (DOL) has asserted that a plan’s inability to locate terminated participants can constitute a breach of duty on the part of the plan’s fiduciaries, in violation of ERISA.  Lost or missing participants can also lead to plan disqualification risks; for example, if “required minimum distributions,” mandated under the Internal Revenue Code, cannot be made.

Read More >> Legal Risks Associated With a Retirement Plan's "Missing Participants"

The task-based business model of the gig economy is transformative in every industry affected, from ride-hailing (Uber, Lyft), to housing rental (Airbnb), to food delivery (Uber Eats, Grubhub), to professional services (Upwork, Guru).  There seemingly is no end to the potential competitive disruption of gig entrepreneurs.  This expansion continues to exert significant pressure on the fundamental question:  are those who complete the tasks or provide the services employees or contractors?  The question is neither new nor novel.  The answer is pivotal to the success of the businesses and the expectations of the service providers and business owners.

Read More >> What is "Employment" in the Gig Economy?

On June 27, 2018, the Supreme Court struck down mandatory “agency” or “fair share” fees for public sector employees who decline to become union members.  In the decision, Janus v. AFSCME, the Court held that an Illinois statute compelling public employees who choose not to be members of a union to pay agency fees to the union that represents them violates the First Amendment, because it requires those employees to financially support an organization which they did not join voluntarily and whose ideas and speech they may disagree with.

Read More >> The Supreme Court Rules That Requiring Non-Members to Pay Agency Fees to Public Sector Unions is Unconstitutional

Mark Janus, an Illinois child welfare worker, decided not to join the American Federation of State, County, and Municipal Employees -- the union that represents his public sector co-workers.  Under Illinois law, however, Janus is still required to pay fees to the union.  These fees are known as “fair-share” fees, a label which refers to the Illinois law requiring the union to “fairly” represent Janus and all of his co-workers, whether or not they are union members.  For this representation, non-union members like Janus must pay a “fair-share” fee,” which is approximately 78 percent of the full union dues, and in Janus’ case, amounts to $23.48 per pay period.

Janus has objected to the payment of this fee, and his case has reached the United States Supreme Court.  A ruling by the Court in Janus v. AFSCME will be released very soon, and that ruling is expected to strike down the Illinois “fair share” law and similar state laws (including the law in New York) because they violate the United States Constitution.

Read More >> From "Fair Share" to Simply "Unfair" for New York Public Employees

As the end of the Supreme Court term in June approaches, Court-watchers watch their Twitter and news feeds on Mondays and Thursdays with bated breath.  And this past Monday, the news did not disappoint.  In a close 5-4 decision in Epic Systems Corp. v. Lewis, the Court ruled that the Federal Arbitration Act unequivocally provides parties the ability to enter into arbitration agreements requiring individual arbitration proceedings, such that employees waive their ability to bring or join a class action.  Likewise, the Court rejected the employees’ argument that Section 7 of the National Labor Relations Act prohibits employees from waiving such class action rights.

Read More >> An Epic Decision for Employers on Employment Class Action Waivers

Employers must remember that an employee’s exhaustion of his or her Family and Medical Leave Act (“FMLA”) entitlement is not necessarily the “end of the road” for that worker.

Read More >> Remember, Exhaustion of FMLA Leave is (Still) Not the End of the Road!

The U.S. Department of Labor just released a new “Fact Sheet,” targeted specifically at higher education institutions and their compliance with the Fair Labor Standards Act.

Read More >> USDOL Releases New FLSA Guidance for Higher Education Institutions

The unveiling of New York State’s 2019 budget made it clear that the state has maintained its focus on curbing sexual harassment in the workplace.  Included in the legislation, which was delivered to the Governor on April 2, 2018, are numerous new requirements impacting both private and public employers.

Read More >> New Legislation Focused on Preventing Sexual Harassment Included in the 2019 New York State Budget

On April 2, the U.S. Supreme Court held, in Encino Motorcars, LLC v. Navarro, that service advisors at automobile dealerships are exempt from the overtime requirements of the Fair Labor Standards Act.  The Court was divided 5-4 on this issue, with Justice Thomas writing the opinion on behalf of the majority and Justice Ginsburg writing the opinion on behalf of the 4 dissenting Justices.  The Court reversed a Ninth Circuit Court of Appeals' decision, which found that service advisors were non-exempt employees who were eligible for overtime pay.

Read More >> U.S. Supreme Court Rejects Narrow Construction of FLSA Exemptions - April 2018

On March 30, 2018, the Office of Federal Contract Compliance Programs ("OFCCP") announced the new national hiring benchmark for protected veterans under the Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA").  The new hiring benchmark is effective March 31, 2018, and lowers the benchmark to 6.4% from the previous benchmark of 6.7%.  The hiring benchmark is the percentage of total hires who are protected veterans that a federal contractor should seek to hire during the year.

Read More >> VEVRAA Hiring Benchmark Lowered for Federal Contractors

We hear that question pretty often from employers these days, and for good reason.  It is March 2018, 14 months into a new administration, and the Occupational Safety and Health Administration still does not have an agency head.

Read More >> What's Going On With OSHA?

On February 26, 2018, the National Labor Relations Board issued an order vacating its decision in Hy-Brand Industrial Contractors.  As we recently reported on this blog, the Board's Hy-Brand decision reversed its 2015 Browning-Ferris decision, which had significantly changed the legal standard for determining joint employer status under the National Labor Relations Act.

Read More >> NLRB Vacates Recent Joint Employer Decision